In the view of Ombudsman for Equality, the performance-based lump sum agreed for the municipal sector is discriminatory (TAS 408/2018, issued on 10 March 2020)

A collective agreement on a local performance-based lump sum was concluded in the municipal sector in February 2018. The lump sum was paid to most employees of municipalities and joint municipal authorities in January 2019. However, it was not paid to the local government employees that did not receive any pay for the period between 3 September and 18 November 2018.

In the view of the Ombudsman for Equality, the criteria for the lump sum are in violation of the Act on Equality between Women and Men in so far as the lump sum was not made available to employees that did not receive any pay on account of maternity leave, parental leave or childcare leave during the period in review.

Based on the information received by the Ombudsman for Equality, the purpose of the lump sum has been to reward local government personnel for the work performed in municipalities to achieve performance and productivity targets. Employees are eligible for the lump sum even if they have not contributed to the achievement of the performance and productivity targets. The requirement has been that the measures set out in the regulation on the lump sum must have been implemented in 2018 and 2019 even though they may have started earlier or ended later.

Thus, in order to qualify for the lump sum, it has not been necessary for individual employees to contribute in any way to the achievement of the performance or productivity targets. Thus, concrete work is not the distinction between the employees who have received the lump sum and those left outside the scheme. As a rule, all employees who have been in an employment relationship with a municipality when the measures referred to in the regulation on the lump sum are required to have been implemented seem to be in the same position concerning the purpose of paying the lump sum. This applies to employees on unpaid maternity leave as well as employees on parental leave or childcare leave.

This gave rise to a suspicion of discrimination on grounds of maternity leave and an assumption of discrimination on grounds of parenthood and family obligations. In the view of the Ombudsman for Equality, no matters emerged in the case on the basis of which the demand for one paid day between 3 September and 18 November 2018 could have been justified in an acceptable manner.

The argument that the parties have agreed on the benefit in a manner that inevitably excluded specific groups of employees is not an acceptable justification. The essential factor in the assessment of the discrimination was whether equal treatment, taking into account the purpose of the benefit, also required that it should be paid to employees who were absent at the time of the payment.

Moreover, the fact that an employee became eligible for the lump sum by working for at least one day during the period in review did not render the criteria for the lump sum non-discriminatory. This option was not available to all employees. The requirement was that the employer allowed the employee to come to work. Moreover, not all employees on unpaid family leave can come to work because they are unable to make the necessary childcare or other arrangements.

It was emphasised in the information received by the Ombudsman for Equality that all employees on unpaid leave were treated in the same manner. However, the fact that some other employees were also left outside the lump sum scheme is not a justification for treating employees on unpaid family leave less favourably than employees who received the lump sum who can be considered to have been in the same position regarding the purpose of paying the lump sum. Furthermore, the employees on unpaid family leave have not necessarily been in the same position as those who were absent for other reasons as regards whether they could come to work for one day.

28.04.2020